Separation in Singapore Via Deed of Separation and More

In Singapore, separation is a popular solution for couples trapped in troubled marriages. Spouses may enter into a separation as and when they want because the laws regulating spousal relationship do not require cohabitation.

The sole ground for divorce is irretrievable breakdown of the marriage, and there are 6 legally defined ways of proving this irretrievable breakdown: adultery, desertion, unreasonable behaviour, mutual agreement, separation with consent or separation without consent. Along with mutual agreement, separation is often the preferred option when neither party is at fault for the breakdown of the marriage.

This article will cover:

1. Difference Between Separation and Divorce
2. Informal Separation
3. Deed of Separation
4. Judicial Separation
5. Difference Between Deed of Separation and Judicial Separation
6. Things to Avoid During Separation
7. Commission of Marital Rape Even During Separation
8. Outcome of Separation

Difference Between Separation and Divorce

Divorce is the legal process that officially dissolves a marriage. However, some couples may choose to live apart without immediately pursuing divorce. In such cases, they often create a separation agreement or seek judicial separation. 

Informal Separation

Couples are free to separate informally by living apart any time they wish to do so. However, in order for separation to count as a valid ground for divorce, the separation must be valid. Separations may be valid if either or both parties intend for it to lead to divorce. With an informal separation, physical separation is usually required.

Physical separation may be present even if the couples live under one roof, provided that there is a clear disruption of marital or sexual relations. Also, the parties must generally not have performed other typical spousal duties, such as cooking or cleaning for each other.

Separation must also be by the couple’s choice, and not merely a matter of necessity (e.g. if a husband works abroad for a year, that may not count as a valid period of separation).

Deed of Separation

In Singapore, a Deed of Separation is a formal, legally binding document signed by a married couple that contains the terms of their arrangement to live separately. A deed of separation is also known as a separation deed.

Terms in a Deed of Separation

There are two main categories of clauses in a Deed of Separation:

1. Terms relating to the separation itself. This includes the date when the parties separated, the living arrangements of both parties, and the agreement that both parties will live separately from each other.
2. Terms on financial arrangements between the spouses and other terms. This has to be mutually agreed upon. Examples of this would be whether there should be any division of matrimonial assets (who gets the car), maintenance terms concerning the children’s living arrangements (who gets to care for the child, and how much access the other spouse gets).

In this sense, a deed of separation is not too different from a divorce agreement. A lawyer is usually hired to draft the deed of separation, although an oral agreement or a written document composed by the couple may still hold water as a separation agreement.

Advantages to a Deed of Separation

A Deed of Separation can streamline the resolution of ancillary matters, helping to save both time and money, as long as the agreed terms are fair and reasonable. It is an important document for managing separation, particularly useful in situations where a couple cannot divorce yet due to not being married for at least three years, or when they wish to remain married for other reasons.

It is also useful as a precursor to divorce, in the sense that it prepares both parties for the realities of divorce. It is also helpful for spouses who have hope of reconciling in the future and don’t want to divorce just yet.

Disadvantages of a Deed of Separation

While signing the Deed of Separation means that both parties will live apart, it does not change the legal state of their marriage – both parties are still considered legally married. For either party to remarry, a divorce is necessary.

Enforceability of a Deed of Separation

It should be noted that a Deed of Separation can be invoked only with both spouses’ consent, and need not be registered with any government department or court. However, the Family Justice Courts can set aside terms of the Deed of Separation that it considers to be unfair or improper. That said, this will not apply where the court has officially sanctioned the Deed of Separation.

If either party violates the terms of the Deed of Separation, the innocent party can apply to the court for enforcement, particularly concerning financial obligations or custody agreements.

Judicial Separation

A judicial separation is a formal court process in which a married couple is legally recognised as living apart without dissolving their marriage. The process to apply for a judicial separation is similar to that of a divorce, except that in a judicial separation, the couple remains legally married. Couples may file for a court order for judicial separation, pursuant to section 101(1) of the Women’s Charter.

Terms in a Judicial Separation

Unlike a divorce, judicial separation does not terminate the marriage, but it allows the court to address issues such as: 

• Division of assets and property
• Child custody and access rights
• Spousal and child maintenance

Advantages to Judicial Separation

Judicial separation can be applied anytime during the course of marriage, unlike divorce which needs to wait for 3 years from the date of marriage. Additionally, successful application terminates the financial connection between spouses and they are free from marital obligations.

Some may opt for judicial separation as they believe their spouse will not comply with the terms of a deed of separation. This is because failure to comply with a court order (for judicial separation in this case) can constitute an offence.

As judicial separation is a court order, it is legally enforceable unlike a Deed of Separation which is only enforceable at the court’s discretion.

If the parties have a change of mind, the order of judicial separation can be rescinded and they remain married normally.

Disadvantages to Judicial Separation

For some, remaining legally married is a disadvantage, as they may be eager to get a divorce as soon as possible to remarry. It may leave couples in an emotional and legal limbo, as they remain married despite living separately, which can complicate future relationships or long-term plans.

On the other hand, the process of judicial separation is just as expensive and complex as filing for a divorce, which would not be financially prudent if you are planning to file for a divorce in the future. You also need to prove the irretrievable breakdown of the marriage on the grounds of adultery, unreasonable behaviour, or desertion.

For more information, read our other article on judicial separation in Singapore.

Difference Between Deed of Separation and Judicial Separation

While both allow couples to live separately, judicial separation requires court intervention, whereas a deed of separation is a private, voluntary agreement. A deed of separation is more flexible in that the parties can include their own terms and conditions.

Although both can address ancillary matters, the court decides on any ancillary matters that the couple cannot agree on in a judicial separation.

Things to Avoid During Separation

• Significant financial changes – Avoid making any significant financial decisions that might alter your financial situation. This includes, selling/obtaining property, making hefty investments or incurring substantial debts.
• Bad-mouthing the other party – Speaking negatively about your spouse, especially in front of children, can strain relationships and impact custody decisions. Please conduct yourself in a manner that does not compromise your position or lead to unfavourable terms, especially concerning child custody, asset division and maintenance agreements.
• Starting new romantic relationships – It may lead to emotional complications, potentially straining existing relationships, especially if children are involved. Prematurely entering a new romance can also be perceived negatively in divorce proceedings, as it might be viewed as a lack of commitment to resolving the marriage or could influence custody arrangements.
• Breaching legal agreements – If the parties signed a Deed of Separation or attained a judicial separation, it is best to adhere to those terms. Disregarding agreed-upon arrangements can negatively affect your credibility and standing in any future legal disputes or Divorce proceedings.

Commission of Marital Rape Even During Separation

By force of section 375(4) of the Penal Code, a husband can be found guilty of raping his wife if the act of penetration was done without her consent. It does not matter whether the couple were living together or separately at this time, or whether they were still married.

The penalties for marital rape in Singapore are a jail term of up to 20 years, and either a fine or caning.

Similarly, a woman can be found guilty of sexually assaulting her husband under section 376 of the Penal Code if she sexually penetrates him (such as through using an object, or causes him to sexually penetrate her, without his consent. The maximum penalties are also a jail term of up to 20 years, and either a fine or caning.

Outcome of Separation

The separation can end in either reconciliation or divorce. The eligibility conditions for divorce continue to apply if at least one spouse eventually decides to file for divorce. 3 years of separation is required for divorce with both parties’ consent, while 4 years of separation is needed for divorce without consent.

Should you require any guidance on the costs of hiring a divorce lawyer, please refer to our Divorce Fee Guide.

Couples may also wish to seek marriage counselling before they conclude on divorce.